Information Requests and ULPs

Report
Information Requests
Melissa Baumann
NFFE FS Council
Grievance Committee
Modified for Reno Training, 10/03
by J.R. Obst
The Statute: 5 USC 7114(b)(4).
Agencies
must furnish information
that is:
normally
maintained in the regular
course of business;
reasonably available and necessary
for full and proper discussion,
understanding, and negotiation of
collective bargaining subjects.
5 USC 7114(b)(4)
But,
(cont’d)
by statute, agencies do not
furnish information which is:
guidance, advice, counsel, or
training provided for management
officials or supervisors, relating to
bargaining;
prohibited from disclosure by law
(for example, by the Privacy Act).
Sounds Easy.
Right?
It can be easy…
 Some
agency officials respond readily to
“informal” information requests.
(The Union orally or in writing simply
states what documents it wants.)
 If
this is your situation, be thankful and
keep doing what you are doing.
But, many agency managers “play it by the
book;” others are uncooperative. Info
requests must then strictly adhere to the
statute and case law.
For Guidance:
 FLRA Office of General Counsel
http://www.flra.gov/gc/inf_guid.html
 Case
law:
www.flra.gov
 50
FLRA 86 (IRS, Kansas City)
 50 FLRA 55 (FAA, Westbury)
To get the information, the data must be
“normally maintained” and “reasonably
available.”
 Agency
must have the data/documents.
 Union cannot ask Agency to create new
analyses, although the raw data for the
analyses may be requested.
 “Reasonably available” has meant that the
Agency would not have to go to extreme and
excessive means to provide data.
The data must be“necessary.”
 “Particularized
need” may not be simple
statements such as, “Info is needed to
represent employees.”
 Union
 why
must explain:
it needs the info;
 how it will use the info;
 how the information’s use relates to the
Union’s representational responsibilities.
The data must be“necessary,” cont.
 Union
need not disclose its strategy or the
identity of the (potential) grievant.
(Hard not to do, but it will come out sooner or
later, anyway.)
 To
get personal identifiers (name, SSN,
employee ID Number, etc.), the Union must
demonstrate a separate particularized need.
Personal identifiers.
(Name, SSN, Employee ID Number, etc.)
 If
PI is necessary, always make two
requests: one with, and one without,
personal identifiers.
 The “sanitized” data usually is enough.
 If not, getting the sanitized data then may
allow a particularized need to be explicitly
stated for personal identifiers.
 It is rare to need or get personal identifiers.
“Guidance, advice, counsel, etc.
relating to bargaining” will not be
provided.
 Cannot
be management-to-management
information related to bargaining.
 Management
may try to use this to deny
other types of management memos.
Disclosure of information must not
be prohibited by law.
 Privacy Act,
Privacy Act, Privacy Act!
 Rarely does the FLRA find reason for personal
identifiers to be released.
 Sanitized data from which people can be
identified may be refused.
 In requesting release of personal identifiers
the Union must demonstrate a public interest
or show that the info is covered by a “routine
use” under the Privacy Act.
The Process – making a request
for information if you are in the
compliance mode.
 Use
the modified FLRA form (handout).
 Provide particularized need, including the
reason you chose timeframes for the data.
 If you need personal identifiers ask for them.
But also ask that the data be provided in
sanitized form.
 Make a detailed request: management
generally won’t give you what you don’t
specifically ask for.
Ask for specific information.
 Identify
documents clearly, when possible.
By author, date, subject, etc.
 For general requests, be inclusive.
When asked for information which “the agency
used to determine discipline” the agency
withheld information that would have helped
the employee. (“Didn’t use that!” they said.)
For discipline and performance cases, be sure
to ask for all “exculpatory evidence.”
Process (cont’d)
 Request
information from:
 Management
official who has the data;
 Labor-relations specialist;
 Other involved/appropriate management officials.
 E-mail
to officials, with cover note asking that
they contact you if they have any questions or
concerns about the request. Use “return
receipt” in Lotus Notes.
 CC yourself on the e-mail!
 Wait.
Agency response
 Agency
must respond within a reasonable
amount of time.
 Reasonable
depends upon the data requested and
agency workload.
 Union should expect acknowledgement of its
request within two weeks.
 Agency
must provide data or communicate
why it is not providing the data, for example:
 Union
did not give adequate particularized need;
 Privacy Act concerns;
 Not regularly maintained;
 Documents do not exist.
Positive response from
management.
 You
get the data -- GREAT!
If there is disagreement and
you don’t get the info:
 Agency
and Union are expected to discuss the
request in good faith.
 Clarification
of particularized need.
 Alternative forms or means of disclosure that may
satisfy the Union’s need for the information.
 Alternative forms or means of disclosure that satisfy
the Agency’s reasons for not disclosing.
Try to resolve the disagreement.


Management has questions about the particularized
need, the exact data needed, etc. - Work with management to clarify concerns. Keep
notes of meetings, with date, time, who was there,
decisions made. If e-mail, cc yourself and keep copy.
Management refuses to provide data based on a
particular, stated interest - If you think you could do better clarifying your
position, need, etc. with management, do so.
 If you disagree with management’s assessment, tell
them so, and ask to meet to discuss.
Not getting the info may be a
“refusal to bargain…”
If the Agency does not give the Union its
reasons for denying disclosure of information,
this is a refusal to bargain in good faith (5 USC
7116(a)(1) and (5)), even if the Union is not
entitled to the information for a valid reason.
If the agency does not properly respond to an
information request, an Unfair Labor Practice
Charge (or grievance) may be filed.
FLRA Analysis of ULP Charge
 Has
the Union shown a particularized need
(including for personal identifiers, if
requested)?
 Has the Agency given an adequate analysis of
its interests, other 7114(b)(4) reasons, or
Privacy Act reasons for not disclosing?
 Have the Parties communicated their
disclosure interests and explored other
alternatives?
To file ULP charge
 Decision
to file a ULP should be made by the
Local, not just an individual officer/steward
 Give management a brief prenotification,
indicating what the issue is, what the Union
will charge as violations, and who
management should contact to resolve the
issue.
 After 5 days, if no one has contacted you, you
may file a ULP charge with FLRA.
Paperwork for Charge
Fill out FLRA Form 22: Charge Against an Agency
 Describe what happened, when, who did it. Include
statement that you provided management with 5
days notice per our contract
 Include supporting documentation as “Additional
Materials” with a summary sheet describing the
documents. This should be clearly identified as not
being part of the charge.


E-mail when original request was sent.
 The original request.
 Any responses from management.
 Notes from meetings, e-mails, etc. in which the
resolution of the request are discussed.
Paperwork for charge
 Letter
of service no longer needed (you sign
certification of service in Box 8 on the form).
 Send Form and Additional Materials to FLRA.
 Send copy of Form to management official
who you listed on top of FLRA Form.
 Wait.
When FLRA calls
 Be
factual.
 Do not speak poorly of management.
 Stress the efforts you have made to resolve
the request.
 Be cooperative with FLRA and provide any
additional information they need in a timely
manner.
FLRA Role
 Investigate
the charge.
 Decide if there is merit to the charge.
 Work to settle the charge, and get information
from Management.
 Issue complaint or dismissal. (If dismissed,
you can file a new – better - info request on
the same subjects.)
 If complaint is issued, FLRA will serve as the
“prosecutor” and will take the charge to a
hearing.
FOIA
Labor Statute

Statutory period for
response frequently not
adhered to

“Reasonable” time limit

Must pay for information

No cost

Access for anyone in
public

Access limited to Unions

Request goes to FOIA
officer, no connection
with labor issues

Labor relations officer
responds
FOIA


Remedy via court
litigation which costs
money
Union must enforce
Labor Statute

Remedy via ULP
process – no cost

FLRA assistance in
enforcement



No status quo ante

Pre-charge in working
with Agency and Union
Litigating ULP complaint
Status quo ante in all
cases, and nontraditional remedies in
appropriate cases
FOIA
Labor Statute

Only paper data


Exemptions apply (e.g.
documents that relate
solely to internal
personnel rules and
practices)

Broader rights – to
inspect, answer, have
dialog with management
No exemptions – but
union must show
particularized need

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